CHAPTER XVI.

DIVISION OF OFFENSES.

 5. Characters of the five classes.

LXI. It has been mentioned[111] as an advantage possessed by this method, and not possessed by any other, that the objects comprised under it are cast into groups, to which a variety of propositions may be applied in common. A collection of these propositions, as applied to the several classes, may be considered as exhibiting the distinctive characters of each class. So many of these propositions as can be applied to the offences belonging to any given class, so many properties are they found to have in common: so many of these common properties as may respectively be attributed to them, so many properties may be set down to serve as characters of the class. A collection of these characters it may here be proper to exhibit. The more of them we can bring together, the more clearly and fully will the nature of the several classes, and of the offences they are composed of, be understood.

LXII. Characters of Class 1; composed of PRIVATE offences, or offences against assignable individuals.

  1. When arrived at their last stage (the stage of consumation[112]) they produce, all of them, a primary mischief as well as a secondary.[113]
  2. The individuals whom they affect in the first instance[114] are constantly assignable. This extends to all; to attempts and preparations, as well as to such as have arrived at the stage of consummation.[115]
  3. Consequently they admit of compensation:[116] in which they differ from the offences of all the other classes, as such.
  4. They admit[117] also of retaliation;[118] in which also they differ from the offences of all the other classes.
  5. There is always some person who has a natural and peculiar interest to prosecute them. In this they differ from self-regarding offences: also from semi-public and public ones; except in as far as the two latter may chance to involve a private mischief.
  6. The mischief they produce is obvious: more so than that of semi-public offences: and still more so than that of self-regarding ones, or even public.
  7. They are every where, and must ever be, obnoxious to the censure of the world: more so than semi-public offences as such; and still more so than public ones.
  8. They are more constantly obnoxious to the censure of the world than self-regarding offences: and would be so universally, were it not for the influence of the two false principles; the principle of asceticism, and the principle of antipathy.[119]
  9. They are less apt than semi-public and public offences to require different descriptions[120] in different states and countries: in which respect they are much upon a par with self-regarding ones.
  10. By certain circumstances of aggravation, they are liable to be transformed into semi-public offences; and by certain others, into public.
  11. There can be no ground for punishing them, until they can be proved to have occasioned, or to be about to occasion some particular mischief to some particular individual. In this they differ from semi-public offences, and from public.
  12. In slight cases, compensation given to the individual affected by them may be a sufficient ground for remitting punishment: for if the primary mischief has not been sudicient to produce any alarm, the whole of the mischief may be cured by compensation. In this also they differ from semi-public offences, and from public ones.

LXIII. Characters of Class 2; composed of SEMI-PUBLIC offences, or offences affecting a whole subordinate class of persons.

  1. As such, they produce no primary mischief. The mischief they produce consists of one or other or both branches of the secondary mischief produced by offences against individuals, without the primary.
  2. In as far as they are to be considered as belonging to this class, the persons whom they affect in the first instance are not individually assignable.
  3. They are apt, however, to involve or terminate in some primary mischief of the first order; which when they do, they advance into the first class, and become private offences.
  4. They admit not, as such, of compensation.
  5. Nor of retaliation.
  6. As such, there is never any one particular individual whose exclusive interest it is to prosecute them: a circle of persons may, however, always be marked out, within which may be found some who have a greater interest to prosecute than any who are out of that circle have.
  7. The mischief they produce is in general pretty obvious: not so much so indeed as that of private offences, but more so upon the whole than that of self-regarding and public ones.
  8. They are rather less obnoxious to the censure of the world than private offences; but they are more so than public ones: they would also be more so than self-regarding ones, were it not for the influence of the two false principles, the principle of sympathy and antipathy, and that of asceticism.
  9. They are more apt than private and self-regarding offences to require different descriptions in different countries: but less so than public ones.
  10. There may be ground for punishing them before they have been proved to have occasioned, or to be about to occasion, mischief to any particular individual; which is not the case with private offences.
  11. In no cases can satisfaction given to any particular individual affected by them be a sufficient ground for remitting punishment: for by such satisfaction it is but a part of the mischief of them that is cured. In this they differ from private offences; but agree with public.

LXIV. Characters of Class 3; consisting of SELF REGARDING offences: offences against one's self.

  1. In individual instances it will often be questionable, whether they are productive of any primary[121] mischief at all: secondary, they produce none.
  2. They affect not any other individuals, assignable or not assignable, except in as far as they affect the offender himself; unless by possibility in particular cases; and in a very slight and distant manner the whole state.
  3. They admit not, therefore, of compensation.
  4. Nor of retaliation.
  5. No person has naturally any peculiar interest to prosecute them: except in as far as in virtue of some connection he may have with the offender, either in point of sympathy or of interest,[122] a mischief of the derivative kind[123] may happen to devolve upon him.[124]
  6. The mischief they produce is apt to be unobvious and in general more questionable than that of any of the other classes.[125]
  7. They are however apt, many of them, to be more obnoxious to the censure of the world than public offences; owing to the influence of the two false principles; the principle of asceticism, and the principle of antipathy. Some of them more even than semi-public, or even than private offence.
  8. They are less apt than offences of any other class to require different descriptions in different states and countries.[126]
  9. Among the inducements[127] to punish them, antipathy against the offender is apt to have a greater share than sympathy for the public.
  10. The best plea for punishing them is founded on a faint probability there may be of their being productive of a mischief, which, if real, will place them in the class of public ones: chiefly in those divisions of it which are composed of offences against population, and offences against the national wealth.

LXV. Characters of Class 4; consisting of PUBLIC offences, or offences against the state in general.

  1. As such, they produce not any primary mischief; and the secondary mischief they produce, which consists frequently of danger without alarm, though great in value, is in specie very indeterminate.
  2. The individuals whom they affect, in the first instance, are constantly unassignable; except in as far as by accident they happen to involve or terminate in such or such offences against individuals.
  3. Consequently they admit not of compensation.
  4. Nor of retaliation.
  5. Nor is there any person who has naturally any particular interest to prosecute them; except in as far as they appear to affect the power, or in any other manner the private interest, of some person in authority.
  6. The mischief they produce, as such, is comparatively unobvious; much more so than that of private offences, and more so likewise, than that of semi-public ones.
  7. They are, as such, much less obnoxious to the censure of the world, than private offences; less even than semi-public, or even than self-regarding offences; unless in particular cases, through sympathy to certain persons in authority, whose private interests they may appear to affect.
  8. They are more apt than any of the other classes to admit of different descriptions, in different states and countries.
  9. They are constituted, in many cases, by some circumstances of aggravation superadded to a private offence: and therefore, in these cases, involve the mischief and exhibit the other characters belonging to both classes. They are however, even in such cases, properly enough ranked in the 4th class, inasmuch as the mischief they produce in virtue of the properties which aggregate them to that class, eclipses and swallows up that which they produce in virtue of those properties which aggregate them to the 1st.
  10. There may be sufficient ground for punishing them, without their being proved to have occasioned, or to be about to occasion, any particular mischief to any particular individual. In this they differ from private offences, but agree with semi-public ones. Here, as in semi-public offences, the extent of the mischief makes up for the uncertainty of it.
  11. In no case can satisfaction, given to any particular individual affected by them, be a sufficient ground for remitting punishment. In this they differ from private offences; but agree with semi-public.

LXVI. Characters of Class 5, or appendix: composed of MULTIFORM or ANOMALOUS offences; and containing offences by FALSEHOOD, and offences concerning TRUST.

  1. Taken collectively, in the parcels marked out by their popular appellations, they are incapable of being aggregated to any systematical method of distribution, grounded upon the mischief of the offence.
  2. They may, however, be thrown into sub-divisions, which may be aggregated to such a method of distribution.
  3. These sub-divisions will naturally and readily rank under the divisions of the several preceding classes of this system.
  4. Each of the two great divisions of this class spreads itself in that manner over all the preceding classes.
  5. In some acts of this class, the distinguishing circumstance which constitutes the essential character of the offence, will in some instances enter necessarily, in the character of a criminative circumstance, into the constitution of the offence; insomuch that, without the intervention of this circumstance, no offence at all, of that denomination, can be committed.[128] In other instances, the offence may subsist without it; and where it interferes, it comes in as an accidental independent circumstance, capable of constituting a ground of aggravation.[129]

111. Supra, lviii.

112. Ch. vii. [Actions] xiv.

113. See ch. xii. [Consequences] iii.

114. That is, by their primary mischief.

115. See supra, xxxi note, and B. I. tit. [Accessory offences].

116. See ch. xiii. [Cases unmeet] ii. note.

117. I mean, that retaliation is capable of being applied in the cases in question, not that it ought always to be employed. Nor is it capable of being applied in every individual instance of each offence, but only in some individual instance of each species of offence.

118. See ch. xv. [Properties] viii.

119. Ch. ii. [Principles adverse].

120. It seems to be from their possessing these three last properties, that the custom has arisen of speaking of them, or at least of many of them, under the name of offences against the law of nature: a vague expression. and productive of a multitude of inconveniences. See ch. ii. [Principles adverse| xiv. note.

121. Because the person, who in general is most likely to be sensible to the mischief (if there is any) of any offence, viz. the person whom it most affects, shows by his conduct that he is not sensible of it.

122. See ch. vi. [Sensibility] xxv. xxvi.

123. See ch. xii. [Consequences] iv.

124. Among the offences, however, which belong to this class there are some which in certain countries it is not uncommon for persons to be disposed to prosecute without any artificial inducement, and merely on account of an antipathy, which such acts are apt to excite. See ch. ii. [Principles adverse] xi.

125. See note 1 in the preceding page.

126. Accordingly, most of them are apt to be ranked among offences against the law of nature. Vide supra, Characters of the 1st class, lxii. note.

127. I mean the considerations, right or wrong, which induce or dispose the legislator to treat them on the footing of offences.

128. Instance, offences by falsehood, in the case of defraudment.

129. Instance, offences by falsehood, in the case of simple corporal injuries, and other offences against person.


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